Terms and Conditions
Interpretation and Order of Precedence
These Terms and Conditions, together with each Order Form, any applicable Schedule, the DPA, AUP and SLA, all as updated from time to time by Accurx, form the Agreement between Licensee and Accurx. Licensee acknowledges and agrees that these documents apply to any use of the Platform by Service Recipients and Authorised Users.
The Schedules form part of the Agreement where they are stated to apply in an Order Form, or where their application criteria are otherwise met. Each Order Form may identify the Schedules that apply to the relevant Products, but failure to list a Schedule does not prevent that Schedule applying where a Service Recipient or an Authorised User accesses or uses Products, features or functionality described in that Schedule
By executing an Order Form referencing these Terms and Conditions, or by accessing or using the Products, the Licensee agrees to be bound by the Agreement.
In the event of any conflict or inconsistency between the provisions of any document which form part of the Agreement, the order of precedence for resolving such conflict is:
the Order Form;
the DPA in respect of any rights, obligations or liability in relation to Personal Data; and
each Schedule in respect of its specific subject matter only.
the Terms and Conditions.
Capitalised terms not defined within these Terms and Conditions shall have the meanings, and the rules of interpretation that apply to this Agreement shall be as, set out in Schedule 1.
Applicability
If an authorised Commissioning Organisation (such as an Integrated Care Board or PCN) procures access to and use of the Platform on behalf of Licensee and any Service Recipients through a separate agreement with Accurx (“Commissioning Contract”), the provisions in Schedule 2 shall apply.
For the avoidance of doubt, the AUP and the Privacy Notice shall apply at all times to all users of the Platform (i.e. Authorised Users and Authorised Free Users), regardless of whether the Agreement is between Accurx and the Authorised Free User (as Licensee) or Accurx and an organisation (as Licensee, Commissioning Organisation or Service Recipient) or as part of Free Services.
Order Form
Licensee may submit an Order Form to Accurx. Following submission of an Order Form, the Terms and Conditions shall become effective and Licensee shall not be entitled to amend or withdraw such Order Form. In the event there is no Order Form, the Terms and Conditions shall become effective and binding on Licensee when Licensee, or one of its Authorised Users, creates an Account.
Accurx may accept, propose amends to, or reject an Order Form in its absolute discretion.
No variation to an Order Form shall be binding unless expressly agreed in writing by Accurx.
Free Services
Where Accurx agrees to provide the Platform on the basis of a Free Services, the terms set out in Schedule 3 shall apply.
Access to the Platform
Licensee agrees and confirms that:
it and its signatory are duly authorised to enter into this Agreement on behalf of Licensee and any other Service Recipients;
by continuing to use and access the Platform, it agrees to be bound by the latest version of the Terms and Conditions; and
if it elects to use a new Product, such use and access will be covered by, and the relevant Product will be added to, this Agreement in accordance with clause 3.
Subject to payment of the Charges and compliance with the Agreement, Accurx hereby grants to Licensee a non-exclusive, non-transferable right (with a limited right to sub-license to Service Recipients) to access and use the Platform and Documentation during the Term in accordance with the Agreement.
The licence granted in clause 5.2 shall be for the Authorised Use only and Licensee:
undertakes to access and use the Platform in accordance with the AUP; and
agrees to bring the AUP to the attention of Service Recipients and Authorised Users and ensure that all Service Recipients and Authorised Users access and use the Platform in accordance with the AUP.
Licensee shall at all times not, and shall procure that any other Service Recipients and all Authorised Users shall at all times not, knowingly access, store, distribute or transmit any Viruses or any material during the course of their use of the Platform that contains profanities or expletives, is unlawful, harmful, abusive, infringing, offensive, discriminatory, or which facilitates illegal activity or depicts sexually explicit images or causes damage or injury to any person or property. Accurx reserves the right, in its sole discretion and without liability or prejudice to its other rights to Licensee, to:
remove any such material and to suspend or disable Service Recipients' and Authorised Users' access to the Platform at any time and for any reason, including without limitation any actual or suspected breach, if Service Recipients and/or Authorised Users breach this clause 5 or the AUP;
report any misuse of the Platform by Authorised Users in contravention of the AUP to the relevant Service Recipient;
report any misuse of the Platform by the Authorised Free Users in contravention of the AUP to the relevant organisation that engages the HCP; and/or
report any evidence of serious and frequent misuse by Service Recipients and Authorised Users or the Authorised Free Users to relevant authorities and regulators as required.
Except as expressly permitted by the Agreement or by applicable law which cannot be excluded, Licensee shall not, and shall procure that each Service Recipient and Authorised User shall not, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the software underpinning the Platform in any form or media or by any means; or attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Platform.
Licensee shall not, and shall not attempt to (and procures that each Service Recipient and Authorised User shall not and shall not attempt to):
access all or any part of the Platform in order to build a product or service which competes with the Platform;
make the Platform available to any third-party (except to other Service Recipients and Authorised Users); or
attempt to obtain, or assist third parties in obtaining, access to the Platform, other than as provided under this clause 5.
Licensee shall, and shall procure that its Service Recipients and Authorised Users shall,:
use all reasonable endeavours to prevent any unauthorised access to, or use of, the Platform and, in the event of any such unauthorised access or use, promptly notify Accurx;
keep a secure password for their use of the Platform only and shall procure that each Authorised User shall keep their password confidential and not share their login credentials with anyone else;
use an individual email address when creating an Account and not use generic or team email addresses (such as muscoskeletal@trust.nhs.net or info@gppractice.nhs.net);
safeguard access to the devices used to access the Platform; and
inform Accurx immediately if they suspect any unauthorised access to their Account.
Accurx shall not be liable for any delay, failure or breach of these Terms and Conditions where Licensee does not provide such authority, information and co-operation or Licensee fails, delays or omits to act in respect of any of its obligations under these Terms and Conditions.
Except as expressly provided in this Agreement, Accurx makes no warranties, express or implied, including any implied warranties of merchantability or fitness for a particular purpose, and all other warranties, representations, conditions and terms of any kind implied by statute or common law are, to the fullest extent permitted by applicable law and without limitation, excluded from this Agreement. The Platform, the Documentation and any other materials or services are provided to Licensee on an 'as is' basis.
Accurx Scribe fair usage: Licensee acknowledges that Accurx Scribe is subject to fair usage limitations in order to prevent system overload, ensure service quality for all users and ensure licences are not being misused or shared between Authorised Users. Such usage limitations are based on the relevant access for Service Recipients as set out and accessible https://support.accurx.com/en/articles/4453468-accurx-lite-vs-accurx-plus-what-are-the-differences (as may be updated from time to time during the Term by Accurx). Usage exceeding this limit is not possible and no further transcriptions can be made by that Authorised User for the remainder of the day. There are no concurrency limits or incremental charges associated with this usage cap.
Data Protection, Responsibility for and Ownership of Data
Each Party shall comply with its respective obligations under the Data Protection Legislation and shall process Personal Data under the terms of the DPA and Privacy Notice (as applicable).
Each Service Recipient shall own all right, title and interest in and to all of its relevant Service Recipient's Data and the Patient Data. Licensee shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of Service Recipients' Data and Patient Data.
Accurx may use Service Recipient Data and other usage data and information related to the use of the Platform during the Term to create Analytical Data, which Licensee acknowledges may be used to improve the performance and functionality of the Platform or develop Improvements.
Accurx may track and analyse Service Recipients' and Authorised Users' use of the Platform for the purposes of security, service delivery, auditing and to help Accurx improve the Platform.
Accurx’s Obligations
Accurx shall abide by and make the Platform available substantially in accordance with the SLA, as relevant to the Products to which Service Recipients and Authorised Users have access, and provide the level of user support set out in the SLA.
Accurx shall not be liable for any breach of its obligation in clause 7.1 to the extent any non-conformance is caused by use of the Platform contrary to Accurx’s instructions, or any modification or alteration of the Platform by any party other than Accurx. Notwithstanding the foregoing:
Licensee acknowledges and agrees that the Platform will evolve over time and that functionality may be added and removed from time to time, provided that such updates do not result in a material degradation of the overall functionality or performance of the Platform;
Accurx does not warrant that Service Recipients' and Authorised Users’ use of the Platform will be uninterrupted or error-free, or that the information provided, generated, obtained or otherwise accessible by Service Recipients through their use of the Platform ("Content") will meet Service Recipients’ requirements. For the avoidance of doubt, all Content is provided on the basis of the warranty disclaimer in clause 5.9 and Accurx assumes no responsibility for, and expressly disclaims any liability arising from use of or reliance on, such Content; and
Accurx shall not be in breach of the SLA to the extent any non-conformance relates to any loss in availability, delays, delivery failures, or any other loss or damage resulting from the transfer of data over third party communications networks, services and facilities that it does not own or that are out of its control (for example, the internet and any integrations such as electronic patient records and PDS), and Licensee acknowledges that the Platform may be subject to limitations, delays and other problems inherent in the use of such communications facilities;
Accurx shall not be liable for any unauthorised access, use or alteration of Authorised Users’ Accounts, transmissions or content, or any Virus or malware infecting Authorised Users’ devices as a result of the Platform to the extent that these arise from any use contrary to this Agreement and/or any instructions received from Accurx.
Accurx shall use the latest versions of anti-virus software available from an industry accepted anti-virus software vendor to check for, contain the spread of, and minimise the impact of Viruses.
This Agreement shall not prevent Accurx from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.
Licensee’s Obligations
Licensee shall, and shall procure that each Service Recipient and Authorised User shall, abide by the Caldicott Principles, NHS Code and NHS Constitution while accessing and using the Platform. Licensee agrees that it is responsible for obtaining and maintaining all licences, permissions and consents (including under its own privacy notices and the common law duty of confidentiality) which may be required in order to implement, use, and submit Personal Data and any other data through the Platform.
Licensee shall provide Accurx with all necessary cooperation in relation to this Agreement and all necessary access to information as may be required by Accurx to fulfil its obligations under this Agreement, including granting Accurx full and unrestricted access to Licensee's and the other Service Recipients' account information and activity held internally by Accurx (for clarity this is not access to the Account) in order to allow Accurx to undertake activities such as providing support, carrying out maintenance, reviewing analytics and data to provide insights for making improvements to the Platform and fixing any errors. Licensee shall carry out all of its responsibilities in this Agreement in a timely and efficient manner.
Licensee shall be responsible for setting the access rights for its Authorised Users, and shall procure that each Service Recipient sets the access rights for its Authorised Users. Licensee acknowledges that Accurx will assign Administrator Privileges to the first Authorised User who accesses and/or creates a Workspace within the Platform (unless instructed otherwise in writing) and agrees that it is responsible for: (i) ensuring that any Authorised User with Administrator Privileges has been correctly assigned; and (ii) for making any changes and reassigning Administrator Privileges, as necessary.
Licensee shall ensure that all Service Recipients and Authorised Users use the Platform strictly in accordance with this Agreement and the AUP and shall be responsible for any Service Recipient's or Authorised User's breach of this Agreement and/or the AUP.
Licensee acknowledges that:
use of the Platform is subject to the Disclaimers;
use of certain Products is subject to the Product Specific Terms;
use of any AI Features is subject to the AI Services Schedule; and
certain Products are Medical Devices that have specific Medical Device Information which Licensee, Service Recipients, and Authorised Users must read and comply with before use, in accordance with Medical Device Legislation,
Licensee confirms that it understands and agrees, and procures that all Service Recipients and Authorised Users understand and agree, to the Disclaimers, the Product Specific Terms and the Medical Device Information, as applicable to the Products they use. Licensee further agrees to bring the Disclaimers, Product Specific Terms, and Medical Device Information to the attention of all Service Recipients and Authorised Users.
Licensee shall indemnify Accurx against all costs, losses, damages, liabilities and claims, arising from or in relation to any third-party claims (including claims for clinical negligence) as a result of the actions of Service Recipients or Authorised Users in providing their services to Patients using the Platform (including any failure by Service Recipients or Authorised Users to adhere to and follow the Disclaimers, Product Specific Terms, or Medical Device Information). In connection with any event reasonably likely to give rise to a liability under the indemnity in this clause 8.6, Accurx shall give Licensee written notice of any claim as soon as reasonably practicable.
Licensee shall ensure that its network and systems and those of the other Service Recipients comply with the Minimum Specifications as necessary for the operation of the Platform, and shall be solely responsible for procuring and maintaining all network connections and telecommunications links from its systems to Accurx’s data centres.
During the Term and for a period of one year afterwards, Licensee shall maintain in force insurance policies or indemnity schemes with reputable insurance companies or providers, against all risks that would normally be insured against by a prudent businessman in connection with the risks associated with this Agreement and the provision of direct care services to Patients (including without limitation for medical negligence), and shall produce to Accurx on request full particulars of that insurance and evidence that such insurance is current and in effect. Licensee shall procure that the other Service Recipients comply with this clause 8.8 in respect of their risks.
From time to time Accurx may ask that Service Recipients allow Accurx employees to attend Service Recipients’ premises to take part in, for example, a visit to a GP practice or NHS Trust hospital (“Practice Visits”), subject to the consent of Service Recipients. Accurx employees use the Practice Visits as an opportunity to shadow NHS staff to learn more about the challenges faced by healthcare professionals working in the NHS and to receive feedback or insight to guide improvements to the Platform and the development of new products. Accurx will arrange the Practice Visits with Service Recipients directly, at a time and frequency that is convenient to them, and Licensee procures that Service Recipients will accommodate the Practice Visits where possible.
Licensee shall update Accurx as soon as practical if there are any changes to the name or contact details of the Key Contact or any other individuals identified in the Order Form. Licensee acknowledges and agrees that until such notification is received, Accurx will continue using and contacting the existing individual and contact details.
Payment
This clause 9 only applies if access to the Platform is being paid for by Licensee and does not apply to Authorised Free Users.
Licence Fee
The Licence Fee is set out in the Order Form and Accurx agrees not to increase the Licence Fee during the Initial Term unless: (i) otherwise agreed in the Order Form; or (ii) Licensee procures additional access to the Platform in accordance with clause 9.2.3. For the avoidance of doubt, SMS Costs are not included in the Licence Fee and are subject to increase during the Term as set out in clause 9.4.3.
Without prejudice to clause 9.2.1, Licensee shall permit, and shall procure that the other Service Recipients shall permit, Accurx to monitor the Platform in order to establish how many Authorised Users and Patients are using the Platform. If Licensee exceeds the access rights set out in the applicable Order Form (for example, if Licensee has a different Patient list size or more Authorised Users than agreed), Licensee and Accurx shall promptly execute a new Order Form for such additional access rights.
Licensee may purchase access to the Platform for additional Patients, Authorised Users and/or Service Recipients (as applicable) during the Term.
Where Products have been purchased at a bundled price, Accurx will charge the Licence Fee for each module pro-rata according to the bundled price and invoice date.
Except as expressly provided in this Agreement, Charges are non-refundable other than in Accurx's sole discretion.
Payment
During the Term, Licensee agrees to pay Accurx the Charges by the due date and in accordance with the Payment Terms (both as set out in the Order Form) and will be charged these from the Switch-on Date (unless stated otherwise in the Order Form).
The Charges are stated exclusive of value added tax, which shall be added to the relevant invoice(s) at the appropriate rate where relevant.
Service Recipients remain responsible for payment of SMS Costs in the event an SMS message is sent via an SMS gateway that is not Accurx’s gateway (for example, an ICB’s SMS gateway) and that gateway is unable to deliver successfully an SMS Fragment and Accurx’s SMS gateway is required to deliver successfully the SMS Fragment(s).
Price increases
Subject to clauses 9.2.1 and 9.4.2, Accurx shall be entitled to increase:
the Licence Fee upon at least ninety (90) days’ prior written notice to Licensee with such increase taking effect at the start of the Renewal Term immediately following expiry of the notice; and
Accurx shall be entitled to increase the SMS Costs (in line with any third party supplier price changes passed on to Accurx) upon at least sixty (60) days’ prior written notice to Licensee. For the avoidance of doubt, increases to SMS Costs shall take effect immediately following expiry of the notice and not at the start of a Renewal Term.
For the avoidance of doubt:
Accurx does not need to provide the notice in clause 9.4.1 if the events in clauses 14.3 and 14.4 occur; and
should Licensee not wish to accept a SMS Costs price increase, it may terminate this Agreement by providing written notice to Accurx within thirty (30) days of being notified about the relevant price increase.
Consequences of non-payment
If Accurx has not received full payment of the Charges:
from Licensee within 30 days of the due date;
in accordance with clause 9.6.2 and payment remains outstanding 90 days from the original due date; or
in accordance with clause 9.7.2 and payment remains outstanding 90 days from the original due date,
Accurx shall be entitled to suspend access to the Platform for Licensee and any Service Recipients and Authorised Users (as applicable) on not less than 10 Business Days’ notice, until payment of the outstanding amount has been received by Accurx in full, without prejudice to any other rights and remedies of Accurx.
Interest shall accrue on a daily basis on any overdue amounts at an annual rate equal to 4% above the Bank of England's base rate, commencing on the due date and continuing until fully paid, whether before or after judgment.
Commissioning Organisation
Licensee’s Agreement with Accurx shall not automatically terminate in the event of a Commissioning Organisation entering a subsequent agreement with Accurx on behalf of Licensee.
If Accurx has not received payment by the relevant due date from Commissioning Organisation of any Charges which relate to Licensee's access to the Products and use of the Platform, Licensee shall pay the outstanding Charges in full, without prejudice to any other rights and remedies of Accurx.
Charges paid directly by Service Recipients
This clause 9.7 shall only apply where it is agreed in the Order Form that Service Recipients shall pay Accurx the Charges directly. In this event, Licensee shall procure that those Service Recipients pay Accurx the Charges as set out in the Order Form.
If Accurx has not received payment from the relevant Service Recipients of any Charges by the relevant due date, Licensee shall pay the outstanding Charges in full, without prejudice to any other rights and remedies of Accurx.
Compliance with Laws and Regulations
Licensee shall, and shall procure that Service Recipients and Authorised Users shall, comply with all applicable laws and regulations in the exercise of its rights and the performance of its obligations pursuant to this Agreement, including in relation to the Services Recipients' and Authorised Users' access or use of the Platform.
Accurx shall comply with all applicable laws and regulations in the exercise of its rights and the performance of its obligations pursuant to this Agreement.
Intellectual Property Rights
As between the Parties, all rights (including Intellectual Property Rights), title and interest in and to the Platform, the Products, the Documentation, Analytical Data, and the Case Study shall belong to, and remain vested in, Accurx at all times.
Service Recipient grants Accurx a royalty-free, non-exclusive, non-transferable, sub-licensable licence during the Term to host, copy, process, transmit, display and use the Service Recipient Data solely to the extent necessary to provide the Platform and related services and to perform Accurx’s obligations under the Agreement.
Accurx may use and exploit, without any payment or attribution obligation of any kind, any feedback, suggestions, or ideas Service Recipients or Authorised Users provide to Accurx in connection with the Agreement or the Platform, including any such feedback, suggestions, or ideas provided during a Practice Visit (“Feedback”). To the extent permitted under applicable law, Licensee waives, and shall procure that any Service Recipients and Authorised Users waive, any moral and similar rights they may have in such Feedback. Licensee acknowledges that Accurx may use Feedback to develop Improvements.
Without prejudice to the generality of the foregoing and to the provisions of clause 5.5 and 5.6 and notwithstanding any rights or remedies of Accurx, any and all Intellectual Property Rights in and to any Improvements to the Platform however arising shall immediately vest in and be owned by Accurx without compensation or other obligation to Service Recipients or Authorised Users. Licensee shall procure Service Recipients' and Authorised Users' adherence to this clause 11.4.
To give effect to clause 11.4, Licensee shall, and shall procure that any other Service Recipients and all Authorised Users shall, assign to Accurx all existing and future Intellectual Property Rights in the Improvements and all materials embodying these rights to the fullest extent permitted by law. Insofar as they do not vest automatically by operation of law or under this Agreement, Licensee holds legal title in these rights and Improvements on trust for Accurx.
Licensee undertakes to execute, and to procure that Service Recipients and Authorised Users execute, all documents, make all applications, give all assistance and do all acts and things, at the expense of Accurx and at any time either during or after the Agreement, as may, in the opinion of Accurx be necessary or desirable to vest the Improvements in the name of Accurx.
Accurx shall defend Licensee against any third-party claims that the use of the Platform in accordance with this Agreement infringes any third-party Intellectual Property Right and subject to clauses 11.8 and 11.9 shall indemnify Licensee for and against any amounts awarded against Licensee in judgment or settlement of such claims, provided that:
Accurx is given prompt notice of such claim and sole authority to defend or settle the claim;
Licensee provides reasonable co-operation to Accurx in the defence and settlement of such claim, at Accurx’s expense;
neither Licensee nor any other Service Recipient makes any admission of liability or fault itself or on behalf of Accurx.
In the defence or settlement of any claim pursuant to clause 11.7 above, Accurx may at its sole option and expense either:
procure for Licensee the right to continue using the Platform in the manner contemplated by this Agreement;
replace or modify the Platform as applicable so that it becomes non-infringing; or
terminate this Agreement forthwith by notice without liability to Licensee.
Accurx shall not in any circumstances have any liability (including in respect of the indemnity provided under clause 11.7) if the alleged infringement is based on:
modification of the Platform by anyone other than Accurx or Improvements created independently by Licensee, Service Recipients or Authorised Users without input or written consent from Accurx;
Service Recipients’ and/or any Authorised User’s use of the Platform otherwise than in accordance with this Agreement and/or the AUP, or in a manner contrary to the instructions given to Licensee by Accurx; or
Service Recipient's or Authorised User’s use of the Platform after notice of the alleged or actual infringement from Accurx or any appropriate authority; or
use or combination of the Platform with any other software or hardware, in circumstances where, but for such combination, no infringement would have occurred; or
failure to meet the Minimum Specifications.
Subject to clause 11.9, Licensee shall defend Accurx against all or any costs, claims, damages or expenses incurred by Accurx in respect of any third-party claims relating to Licensee’s or any other Service Recipient's or any Authorised User’s use of the Platform otherwise than in accordance with this Agreement and/or the AUP, provided that Licensee is given prompt notice of such claim.
Term and Termination
This Agreement shall commence as of the Effective Date and shall continue for the Initial Term, unless terminated earlier in accordance with this Agreement.
On expiry of the Initial Term, this Agreement shall automatically renew for successive periods equal to the longer of twelve (12) months or the length of the Initial Term (each, a “Renewal Term”), unless:
specified otherwise in the Order Form; or
either Party provides the other with written notice to terminate this Agreement at least sixty (60) days prior to the expiry of the Initial Term, or at least thirty (30) days’ prior to the expiry of the Initial Term where the Initial Term is a period of less than twelve (12) months; or
either Party provides the other with written notice to terminate this Agreement for any reason during any Renewal Term, such notice to be given at least thirty (30) days prior to the expiry of the relevant Renewal Term.
this Agreement is terminated earlier in accordance with its terms.
The addition of new Service Recipients or Products shall not increase the Term, unless confirmed by Accurx otherwise.
Without affecting any other right or remedy available to Accurx, it may terminate this Agreement with immediate effect by giving written notice to Licensee if Accurx in its sole discretion determines it necessary where:
there is an error in an Order Form which has been submitted by Licensee via the Site; or
Accurx has not received full payment of the Charges within thirty (30) days of the relevant suspension taking effect under clause 9.5.
Without affecting any other right or remedy available to Accurx, if it knows or has reasonable grounds to suspect that Licensee is acting in breach of its obligations under this Agreement (excluding any failure to pay the Charges), Accurx may, on ten (10) Business Days’ written notice to Licensee, suspend access to the Platform until such breach is remedied or until Accurx is satisfied (acting reasonably) that its suspicions are unfounded.
Without affecting any other right or remedy available to the Parties, either Party may terminate this Agreement with immediate effect by giving written notice to the other Party if:
the other Party commits a material breach of any terms of this Agreement, which breach is irremediable or fails to remedy that breach within thirty (30) days after being notified in writing to do so (in relation to breaches by Service Recipients and Authorised Users, Accurx shall determine whether such breach is remediable in its sole discretion) ; or
the other Party suspends, ceases, or threatens to suspend or cease carrying on its business or a substantial part thereof, or suffers an Insolvency Event; or
a Commissioning Organisation enters into an agreement with Accurx for the same Product and Service Recipients.
If Accurx validly terminates the Agreement under clause 12.6, all Charges payable for the remainder of the Term become immediately due and payable and no refund is due.
If Licensee validly terminates the Agreement under clauses 12.6.1 and 12.6.3, Accurx shall refund any pre-paid unused Charges for the remainder of the Term.
On termination of this Agreement for any reason:
all licences granted under this Agreement shall immediately terminate;
each Party shall return and make no further use of any Confidential Information, equipment, property and other items (and all copies of them) belonging to the other Party;
any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination shall not be affected or prejudiced; and
Accurx shall arrange for the return of any data in accordance with the DPA.
Limitation of Liability
This clause 13 sets out the entire financial liability of Accurx to Licensee arising under or in connection with this Agreement, in respect of any use made by Service Recipients, its Authorised Users or any other third-parties of the Platform; and in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
Nothing in this Agreement excludes either Party’s liability for death or personal injury caused by its negligence, fraud or fraudulent misrepresentation or for any liabilities that cannot be excluded under applicable law.
Subject to clause 13.2 neither party shall be liable for:
any consequential, indirect, special, incidental, punitive or exemplary damages, whether foreseeable or unforeseeable;
loss of profit, loss of business;
loss caused as a result of the Platform being unavailable as a result of planned downtime for the Platform as notified to Licensee;
loss caused as a result of the Platform being unavailable caused by a Force Majeure Event
any loss or damage caused by a Virus, distributed denial-of-service attack, or other technologically harmful material that may infect the Service Recipient's computer equipment, computer programmes, data or other proprietary material due to your use of the Platform unless caused by Accurx’s negligence;
any loss of data, use, goodwill, or other intangible losses;
any loss or damage arising from an inability to access or use the Platform;
Subject to clauses 13.2 and 13.3, Accurx's total aggregate liability in contract, tort (including negligence), or otherwise arising out of or relating to this Agreement shall be limited to the higher of:
the total Licence Fee paid or payable during the twelve (12) months immediately preceding the event or series of connected events giving rise to the claim; and
£250,000 (two hundred and fifty thousand pounds).
save that Accurx’s total aggregate liability for any claims arising out of or in connection with a breach of the DPA or Data Protection Legislation shall not exceed £1,000,000 (one million pounds) in aggregate for all losses incurred by any or all Service Recipients collectively, whether arising from a single event or series of related events (“Data Protection Liability Cap”). Notwithstanding anything to the contrary in the DPA or the Agreement, no indemnity given by Accurx shall apply to, or require reimbursement of, any administrative fines, penalties, sanctions or similar amounts imposed by a competent supervisory authority or other regulatory body under applicable Data Protection Legislation, except to the extent that such exclusion is prohibited or unenforceable as a matter of applicable law.
Assignment, Licensee Merging Business
Accurx may assign the Agreement on notice to Licensee to an Affiliate or in connection with a Change of Control or sale of substantially all assets, provided the assignee assumes the assigning party's obligation.
Subject to clauses 14.3 and 14.4, Licensee shall not, without the prior written consent of Accurx, assign, transfer, charge, sub-contract, or deal in any other manner with all or any of its rights or obligations under this Agreement.
In the case of Licensee merging with a third party, Licensee shall give Accurx at least thirty (30) days' written notice of any such merger and such notice shall include:
the name, address and national code (for example ODS code) of the proposed merger party that will assume engagement of Licensee's Service Recipients and care of its Patients; and
the date upon which such merger shall be effective.
Should a merger occur that results in the merger party assuming engagement of Service Recipients and responsibility for Licensee's Patients, Accurx's consent to the merger shall be implied, provided notice has been served pursuant to clause 14.3 and that such merger does not materially and adversely affect the financial position of Accurx, and Licensee shall procure that the merger party agrees to meet all obligations of Licensee under this Agreement and execute a deed of variation of this Agreement to that effect.
Confidential Information and Publicity
“Confidential Information” means all confidential information (however recorded or preserved) disclosed by one Party or its employees, officers, representatives or advisers (together “Representatives”) to the other Party and the other Party’s Representatives whether before or after the Effective Date, including the terms of this Agreement; the business, affairs, licensees, clients, suppliers, plans, intentions, market opportunities, the operations, processes, product information, know-how, technical information or trade secrets of the disclosing Party.
Confidential Information of the disclosing Party shall not include information which:
is or becomes generally available to the public, other than as a result of a disclosure by the receiving Party or any of its Representatives;
has been rightfully received by the receiving Party from a third-party without confidentiality restrictions;
has been independently developed by the receiving Party without use of or reference to the disclosing Party's Confidential Information; or
the Parties agree in writing is not confidential or may be disclosed.
The Confidential Information of the disclosing Party will be kept confidential and will not be disclosed or divulged by the receiving Party to anyone except with the disclosing Party’s prior written permission, or as may be required by law or by the order or demand of a court or government agency or authority.
Notwithstanding the foregoing, the receiving Party may disclose the disclosing party’s Confidential Information to the receiving Party’s Representatives who need to review such Confidential Information, so long as they are bound by confidentiality obligations no less restrictive than those in this clause 15. The receiving Party shall be liable for any breach of these confidentiality obligations by their Representatives.
Upon expiration or earlier termination of this Agreement for any reason, the receiving Party will return to the disclosing Party or destroy (at the disclosing Party’s sole discretion) all Confidential Information of the disclosing Party and all copies thereof (except that Licensee may retain any Confidential Information needed to fulfil orders then pending as contemplated by this Agreement only until such orders are fulfilled and then must return or destroy, at Accurx’s sole discretion, all Confidential Information) and, upon the written request of the disclosing Party, an authorised officer of the receiving Party will certify in writing to the disclosing Party that the receiving Party has complied with this clause 15.5. In such event, the receiving Party will continue to be bound by this clause 15.
Notwithstanding the foregoing, Licensee permits Accurx to identify Licensee as a client. To this end, Licensee grants Accurx a perpetual, non-exclusive, royalty-free and non-transferable licence during the Term of the Agreement for Accurx to use Licensee’s logo, name and branding on the Site and in any marketing and publication materials.
Independent Contractor
The relationship between the Parties is that of independent contractors and nothing herein shall be construed to create a partnership, joint venture, or agency relationship between the Parties hereto nor authorise any Party to make or enter into any commitments for or on behalf of any other Party. Each Party confirms it is acting on its own behalf and not for the benefit of any other person.
Miscellaneous
Dispute: Licensee agrees that if they have any dispute with Accurx concerning this Agreement, they agree to contact Accurx first and attempt to resolve the issue informally. If the Parties are unable to resolve the dispute between themselves informally they both agree to attempt resolution by independent mediation. Should independent mediation not be successful, the Parties both agree to resolve the dispute through court action which will be subject to the exclusive jurisdiction of English courts.
Entire Agreement: This Agreement constitutes the entire Agreement between the Parties and supersedes and extinguishes all prior and contemporaneous agreements, negotiations, promises, assurances, warranties, understandings and representations between them, whether written or oral, relating to its subject matter. Each Party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
Amendment: These Terms and Conditions may be revised at any time by Accurx and any modifications shall become effective and binding as follows:
Non-material updates: these may be made by Accurx from time to time and shall become binding immediately after the change has been made. Non-material updates are changes that do not fundamentally alter a Party’s rights or obligations, such as correcting grammatical or clause numbering.
Material updates: Accurx shall notify Licensee (for example, by contacting the Key Contact) by email or by notification within the Platform of any material changes, together with a summary of those changes where reasonably practicable, and such changes shall become effective thirty (30) days after Accurx’s notification unless Accurx has received a written objection from Licensee in accordance with clause 17.3.3. While Accurx will use commercially reasonable endeavours to notify any Service Recipients and Authorised Users of these updates, Licensee is responsible for ensuring they are aware of these updates. Material updates are changes that may fundamentally alter a Party’s rights or obligations, such as conditions of access to the Platform or changes to liabilities or indemnities.
If Licensee does not agree with any material changes notified to it under clause 17.3.2, it shall notify Accurx in writing, setting out the reasons why such modification is not accepted, within ten (10) Business Days of Accurx’s notification. If the Parties cannot resolve Licensee’s objection, the Agreement shall continue to be governed by the Terms and Conditions in force immediately before the change until the end of the then-current Term, after which the most recent Terms and Conditions published on the Site (at https://www.accurx.com/terms-and-conditions) will apply.
If Licensee objects in accordance with clause 17.3.3 and Accurx can no longer reasonably provide access to the Platform under the Terms and Conditions prior to modification (for example, where modifications are required by a change in applicable law (including Data Protection Legislation), are necessary to ensure the security or integrity of the Platform, or result from general product changes), the Agreement will terminate immediately upon Accurx giving written notice to Licensee. In such event, Accurx will (if relevant) promptly refund any prepaid but unused fees covering use of the Platform after termination.
The most recent Terms and Conditions will always be published on the Site (at https://www.accurx.com/terms-and-conditions) and Accurx may provide a summary of any changes made upon written request from Licensee. By continuing to access or use the Platform, Service Recipients agree to be bound by the most up to date Terms and Conditions, provided no objection has been received in accordance with clause 17.3.3.
Waiver: A waiver by any Party of any of its rights hereunder shall not be binding unless in writing signed by an authorised representative of the Party expressly waiving such rights. The non-enforcement or waiver of any provision on any occasion shall not constitute a waiver of such provision on any other occasions unless expressly so agreed in writing.
Severability: If any provision or part-provision of this Agreement becomes or is held invalid, illegal, or unenforceable, it shall be deemed modified or deleted to the minimum extent necessary but that shall not affect the validity and enforceability of the rest of this Agreement.
Rights and Remedies: Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
Force Majeure: Neither Party shall in any circumstances be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure results from events, beyond its reasonable control, including, without limitation, strikes, acts of God, war, terrorism, riot, denial of service attacks, epidemic, pandemic or compliance with any law or governmental order (“Force Majeure Event”). In such circumstances the affected Party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for three (3) months, the Party not affected may terminate this Agreement by giving thirty (30) days' written notice to the other Party.
Third-Party Rights: No one other than a Party to this Agreement, their successors and permitted assignees, shall have any right to enforce any of its terms, whether pursuant to the Contracts (Rights of Third Parties) Act 1999 or otherwise.
Notices: Any notice given to a Party under or in connection with this Agreement shall be in writing and delivered, and shall be deemed to have been received as follows:
Party | Addressee | Address | Email address |
|---|---|---|---|
Accurx: | Accurx | 7 Curtain Road, London, England EC2A 3LT | |
Licensee: | Key Contact | Licensee address as set out in the Order Form | Key Contact’s email address as set out in the Order Form |
Method | Deemed receipt |
|---|---|
By hand | At the time the notice is left at the Receiving Party’s address identified above |
By pre-paid first-class post or other next working day delivery service | At 9.00 am on the second Business Day after posting |
By email | At 9.00 am on the next Business Day after transmission |
Licensee acknowledges and agrees that any notification requirements under this Agreement shall be satisfied by Accurx notifying Licensee on behalf of any Service Recipients.
Notwithstanding clause 17.9.1, the notice requirements in this clause 17.9 shall not apply to the service of legal proceedings.
Governing Law and Jurisdiction: This Agreement shall be governed by and construed in accordance with the laws of England and Wales and the Parties agree that the English and Welsh courts shall have exclusive jurisdiction.
Schedule 1: Definitions and Interpretation
Schedule 2: End User Obligations
Schedule 3: Free Services
Schedule 4: General Platform Disclaimer
Schedule 5: AI Services
Schedule 6: Product Specific Terms (Accurx Scribe)
Schedule 7: Product Specific Terms (Patient Initiated Forms (Patient Triage) and Accurx Navigator)
Schedule 8: Product Specific Terms (Accurx Mobile Directory)
Schedule 9: Product Specific Terms (Translation)
Schedule 10: Product Specific Terms (Smart Triage Questions)